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[2016] ZAGPPHC 91
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Ginindza and Others v Speaker of the National Assembly and Others (1538/2015) [2016] ZAGPPHC 91 (19 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE EQUALITY COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 1538/2015
DATE:
19 FEBRUARY 2016
In
the matter between:
MABHUZA
SIMEON GININDZA AND 83
OTHERS
........................................................
Applicants
And
SPEAKER
OF THE NATIONAL
ASSEMBLY
.........................................................
First
Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
......................................................................................................
Second
Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
....................................
Third
Respondent
MINISTER
OF
FINANCE
.......................................................................................
Fourth
Respondent
JUDGMENT
TEFFO.
J
:
[1]
The applicants lodged a complaint with
this Court under the provisions of the Promotion of Equality and
Prevention of Unfair Discrimination
Act 4 of 2000 (“the
Equality Act"). The basis of the complaint is that they have
been unfairly discriminated in that
the payment of their benefits to
the Kangwane Pension Fund (“the Fund”) has been suspended
with effect from 1 March
2006 because of government’s refusal
to make any contributions to the Fund. Government continues to make
contributions to
the pension funds of former members of
Parliament/TBVC states and self governing territories.
[2]
The applicants are members, pensioners
and beneficiaries of the Fund established by the Kangwane Pension
Fund Act 6 of 1989 (“the
Act”). They act in person in
these proceedings and are represented by Mr M S Ginindza who is also
a member of the Fund. Former
members of Parliament/TBVC states and
self governing territories receive payment of their pension in terms
of section 246 of the
Interim Constitution from privately managed
arrangements. The applicants contend that they have been excluded
from such arrangement
unfairly as they performed same work with their
former members of Parliament/TBVC states and self governing
territories. They have
been receiving unequal pay for equal work
performed and this accordingly constitutes unfair discrimination.
[3]
Referral of this complaint to this Court
is being challenged on the following grounds, viz, res judicata, no
prima facie case of
unfair discrimination has been made out, and
unreasonable delay in instituting proceedings in this Court.
Res
judicata
3.1
The respondents contend that the same
issue involved in these proceedings has been finally disposed of in
the previous litigation.
The complainants dispute this on the basis
that the parties are different and that the cause of action in the
present matter is
not the same as in the previous matters.
No prima facie
case of unfair discrimination has been made out
3.2
The respondents further contend that the
applicants were never beneficiaries under a defined benefit fund.
They were beneficiaries
of a defined contribution fund. Accordingly,
so it was pointed out that the differentiation between beneficiaries
of the different
pension funds can never amount to unfair
discrimination. The complainants disagree and maintain that the
suspension of the payment
of their pension benefits and their
exclusion from the arrangement as provided for in terms of section
246 of the Interim Constitution
constitutes unfair discrimination.
Unreasonable
delay in instituting proceedings in the equality court
3.2
It was pointed out that the applicants
failed to lodge their complaint with this Court since it became
operational on 16 June 2003.
They instituted proceedings in this
Court after long delays in the High Court and an attempt to approach
the Constitutional Court.
The applicants have not explained their
delay in instituting proceedings in the equality court. The
applicants argue that the delay
in lodging the complaint in the
equality court is not unreasonably long as the matter has been dealt
with administratively since
the dawn of democracy.
[4]
Res judicata
is defined as follows in
Garner et al Black’s Law Dictionary 10
th
edition by Thomson Reuters, 2014:
“
[Latin
'a thing adjudicated’] (17 c) 1. An issue that has been
definitely settled by judicial decision. 2. An affirmative
defence
barring same parties from litigating a second lawsuit on the same
claim, or any other claim arising from the same transaction
or series
of transactions and that could have been - but was not - raised in
the first suit ”
[5]
Griesel J held in Lourens v Speaker of
the National Assembly
2015 (1) SA 618
(EqC) that the fact that the
present matter is brought in the Equality Court as suggested by the
applicant, does not detract from
the fact that the same legal
principles have to be applied in order to decide whether or not
Parliament has a duty to translate
national legislation. In this
matter the applicant sought relief against Parliament to oblige it to
translate all legislation into
all the official languages. That
relief was rejected and the question as to Parliament’s
translation duty was regarded as
re judicata.
[6]
Section 246 of the previous constitution provides:
“
The
right of any person in terms of any law which at the commencement of
this Constitution provides for the payment of pensions
from the
exchequer or from any pension fund or arrangement to which the state
contributes or has contributed, to or in respect
of political
office-bearers or former political office-bearers (including members
and former members of Parliament and of any other
legislative
assembly which exercised legislative powers in respect of any area
which forms part of the national territory) shall
continue and shall
not be diminished: Provided that those who have already received
benefits that were due to them shall not benefit
again by reason of
the provisions of this section .”
Res
judicata
[6]
In Kangwane Members Pension Fund v
Government of the RSA case number 29849/09 (6 October 2010) the
applicants sought relief aimed
at ordering the Government of South
Africa to make contributions to the fund to enable it to pay pensions
to its members. In the
present matter the applicants sought to
interdict the cutting off by the state of the payment of pension
benefits to them since
March 2006. According to them section 246 of
the previous Constitution, section 27(2) of the Constitution and
Schedule 6 read with
section 29(2) and (4)(a) of Act 4 of 2000
guarantee that the payment of pensions shall continue and shall not
be diminished and
the state must take legislative and other measures
within its available resources to achieve the progressive realisation
of this
right. In the Kangwane Members Pension Fund v Government of
South Africa above and in the complaint before this court the
applicants
relied on the provisions of section 246 of the previous
Constitution. Without even analysing the provisions of this section,
the
High Court in the Kangwane Members Pension Fund v Government of
the RSA above held that the fund to which the applicants are members
is a defined contribution fund and not a defined benefit fund. The
court further held that the state is under no obligation to
make a
contribution or to make good any shortfall. This decision has not
been appealed. The applicants also referred the same matter
which was
adjudicated in the High court to the Constitutional Court for direct
access. The matter was dismissed with costs.
[7]
I am of the view that the same legal
principles which were applied in the previous matters have to be
applied in this matter to
determine whether or not the suspension of
the payment of pension benefits of the applicants constitutes unfair
discrimination
as alleged. I do not agree that same parties as in the
previous matters are not involved as alluded to by the applicants.
All these
proceedings were instituted by the applicants against
either the Government of the Republic of South Africa, The President
and
or Parliament. The issues that were raised in the previous
matters, for an example, in the High Court, the issue of whether the
fund to which the applicants are members, was a defined benefit or
contribution fund are still being raised in this matter. This
issue
has been disposed of in the High court. It appears from the papers
that the applicants are challenging the decision of the
High court
regarding this issue. The Equality court is not an appeal court. I
therefore find under the circumstances that the argument
by the
respondents has merit. I also do not agree that because the High
Court matter was dismissed on the ground of locus standi,
it was not
a dismissal on the merits. The court in the Kangwane Members of the
Pension Fund matter referred to supra on page 4
line 13 clearly
pointed out that legal standing is not only a procedural question but
also a question of substance. Further to
this a reading of that
judgment clearly indicates that merits were also dealt with. The
Constitutional Court matter was also dismissed
on the ground that
there are no prospects of success in the matter. Under the
circumstances it is my view that the application
falls to be
dismissed.
No
prima facie case of unfair discrimination has been made out.
[8]
Even if one was to entertain this point,
a reading of the papers suggests that according to the applicants the
conversion of their
pension fund into a defined benefit pension fund
was done as per the 1994 regulations. It is common cause between the
parties that
the regulations were never assented to by Parliament.
They were held to be ultra vires the empowering act (the Legislative
Assemblies
Act) by the court in the Kangwane Members of the Pension
Fund matter. Relying on the decision in Registrar of Pension Funds v
ICS
Pension Fund
2010 (4) SA 488
(SCA) 492 par [14] the court in the
Kangwane Members of the Pension Fund above concluded that there is a
differentiation between
a defined contribution fund and a defined
benefit fund. It accordingly held that the fund to which the
applicants belong is a defined
contribution fund and not a defined
benefit fund. This means that the contention of the applicants that
they have been unfairly
discriminated as against beneficiaries of
certain other funds whose funds were regarded defined benefit funds
is without merit.
They cannot thereof rely on the Equality Act to
advance their argument.
[9]
Having made my findings above I do not
find it necessary to deai with the third point in limine.
[10]
The respondents initially sought an
order for costs of two counsels. This prayer was abandoned during
argument given the fact that
the applicants are individual members
who are pensioners and unemployed.
[11]
In the result I make the following
order:
11.1
The application is dismissed.
11.2
No order as to costs.
M
J TEFFO
JUDGE
OF THE HIGH COURT OF South Africa GAUTENG DIVISION, PRETORIA
COUNSEL
FOR THE APPLICANTS NONE
INSTRUCTED
BY NOT APPLICABLE
COUNSELS
FOR THE RESPONDENTS J J GAUNTLETT SC
AND
F B PELSER
INSTRUCTED
BY THE STATE ATTORNEY
PRETORIA
HEARD
ON 4 NOVEMBER 2015
DATE
OF JUDGMENT19 FEBRUARY 2016